Notice of Liability Sent to Christchurch City Council And Environment Canterbury – an Unprecedented Step to Protect Residents

On 5 October 2017, the South Brighton Residents’ Association (SBRA) gave a presentation to Christchurch City Council. It detailed what appeared to be the systematic omission of a large part of the suburb of South Brighton from key council reports on land damage. The Deputy Mayor responded by saying that the problems described would be referred to council staff. The Association has heard nothing more on the matter since then.

The same area (from Bridge Street in the south to Owls' Terrace in the north) was affected by a council flood mapping "error" (cf. timeline) that was only discovered in April 2016. This resulted in a number of houses being rebuilt with extremely low floor levels, a very serious mistake for which no-one has been held accountable.

The affected area was a flood management area (FMA) before the earthquakes and has now been designated a High Flood Hazard Management Area (HFHMA). However, some homes that were rebuilt after the earthquakes, instead of receiving the protection of the Resource Management Act and the higher floor levels that would have been required if resource consents had been issued, were rebuilt under "existing use rights" (an exemption under the RMA), with floor levels as low as 11.27 m above the Christchurch City Datum. This is in breach of the Building Act, yet the council has taken no action to compensate the affected homeowners or to remedy their increased flood risk and loss of property value.

The council has also failed to give effect to other important pieces of legislation, such as the New Zealand Coastal Policy Statement 2010, which obliges local authorities to identify coastal hazards, prevent development in hazard zones, and take steps to mitigate the identified hazards. The Mayor has defended the council inaction by stating that the council is only obliged to give effect to the NZCPS "as soon as practicable". After the serious earthquakes in 2011, it could be argued that this was not only practicable, but extremely urgent. If vigorous steps had been taken at the time to properly identify areas at much greater risk of flooding and relocate residential rebuilds, we would not have the present situation, where residents in certain areas live in fear of the next major rainstorm or spring tide.

On top of the flooding and erosion problems the city faces, comes the question of insurability. Australia and New Zealand have taken a joint approach to land use planning to identify coastal areas at threat from sea level rise.1 In Australia, the results have been published and certain postcodes have reportedly been blacklisted by insurance companies.

In New Zealand, to our knowledge, the information has not been published. In some cases in Christchurch, insurance companies have rebuilt houses with lower floor levels than before the earthquakes. In others, they have cash settled rather than take on complex rebuild projects and the homes have been sold "as is". Now both categories face much higher flood and earthquake risks, risks that insurers are likely to decline as climate change begins to show its teeth.

And the number of homes in this situation is bound to increase. Christchurch City Council is now discussing a proposal to increase minimum floor levels in Christchurch to 12.36m above the city datum in risk zones – a further increase of 6 cm.

The review of the Tonkin & Taylor report on coastal hazards was published by the council on Friday, 3 November 2017. Once again, this report omitted any mention of erosion risk in the area of South Brighton north of Bridge Street.

The maps accompanying the report show only the southern half of the Brighton peninsula (Maps 29a and 29b). The council agenda notes: "The extent of erosion on the estuary side of Brighton Spit is considerably less than modelled inthe 2015 Coastal Hazards Assessment report".

The substantial reduction in the number of homes at risk from erosion in comparison with the earlier versions of the Tonkin & Taylor report can be largely explained by the fact that the area mentioned above has been excluded from the maps and statistics. The council has recently specified precisely this part of the suburb for a "regeneration plan" to deal with legacy earthquake damage. The team was to commence work in late August and produce three options for council by November. However, it is yet to publish any findings or suggest any options.

The areas close to the Lower Avon suffered significant subsidence, liquefaction and lateral spreading over the course of the Canterbury Earthquake Sequence, leaving them at much higher risk of flooding. In addition, a temporary stopbank erected under the emergency legislation in 2011 is the only protection for a swathe of houses that are actually at a lower level than high tide. The stopbank on Kibblewhite Street is less than 20m from housing directly opposite. River water leaks through at high tide and the stopbank was almost breached during the flood event in July this year. Despite constant dewatering of the area, groundwater remains persistently close to the surface.

Filling and excavation work has recently been permitted (without any current building or resource consent) directly opposite the above-mentioned stopbank, potentially threatening its stability and increasing the risk of stopbank failure still further. The SBRA has highlighted errors and omissions of this kind on many occasions to the city council, yet nothing has been done. The purpose and principles of the Resource Management Act 1991, as set out in Part 2, 5, have been overridden in South Brighton, apparently in the interest of reducing council expenditure while sacrificing protection for ratepayers. The association therefore sent a formal notice of liability2 for any damage resulting from the failure of the stopbanks to council on 4 October 2017. This was followed by a formal notice to both council and Environment Canterbury on 13 October 2017.

The Christchurch mayor has told the councillors that Environment Canterbury, not the city council, is liable. ECan responded to our notice by letter, stating that the council is responsible for waterways pursuant to the Christchurch District Drainage Act 1951 and pointing out that the stopbanks in the area were built, and are maintained by, Christchurch City Council. ECan did concede that it had the duty of supervising the council in the exercise of its functions.

On 10 October 2017, speaking about the latest coastal hazards report, Mayor Dalziel made the following statement in a council press release: "And every 10 years we will be able to reassess the scenarios that these options are based on. That's what adaptive management is all about". The SBRA fears that if nothing is done, such adaptive management will produce a disastrous flood similar to the event in Edgecumbe in April 2017.

Taken together since 2011, the council’s inaction and failure to address the coastal hazards point to very serious failings in a district authority.

A single omission of a suburb from a report might be regarded as extreme carelessness. To omit the same suburb a second time looks like gross negligence. But to omit the suburb four times suggests systematic discrimination against a section of the community. These serious charges need to be answered. There has been enough time, effort and money wasted by skirting round the earthquake-related problems. The South Brighton Residents' Association hopes that, with the help of the new government, prompt action will finally be taken to prioritise earthquake damage remediation and to protect people and property in this area more than seven years after the first earthquake.

ENDS

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